Explanatory Note

(This note is not part of the Order)

This Order amends Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10) (“the Act”) and secondary legislation under the Act in relation to the provision of legal aid for certain cases involving domestic abuse.

Part 2 of the Order comprises articles 2 to 4 and sets out amendments to Parts 1 (services) and 3 (advocacy: exclusion and exceptions) of Schedule 1 to the Act. Article 3(4) amends paragraph 28 of Part 1 of Schedule 1 to the Act to make legal aid available to victims of domestic abuse who apply for leave to enter or remain in the UK under Appendix Victim of Domestic Abuse to the immigration rules. Article 3 also replaces references to “domestic violence” with references to “domestic abuse”. Domestic abuse is a broader concept. It includes “economic abuse” instead of “financial abuse” and expressly includes abuse that can be directed towards another individual, in line with the Domestic Abuse Act 2021 (c. 17) (“DA Act”).

Article 4 amends Parts 1 and 3 of Schedule 1 to the Act, to put further services relating to Part 3 of the DA Act (powers for dealing with domestic abuse) in scope of civil legal aid.

Article 4(2) amends sub-paragraph (1A) of paragraph 11 of Part 1 of Schedule 1 to the Act. Article 4(3) inserts new sub-paragraphs (3A) to (3C) into paragraph 11. The effect is that legal aid is available for victims, or relevant third parties, subject to eligibility tests, where a domestic abuse protection order is made, varied or discharged within existing criminal proceedings and where there is a related appeal under section 46(3) or (4) of the DA Act. Provision is made for legal aid to be available to victims and relevant third parties in relation to civil enforcement of a breach of a domestic abuse protection order, by inserting paragraphs (bb) and (g) into paragraph 11(1A). Finally, article 4(2) inserts a new paragraph (c) into paragraph 11(1A). Paragraph (c) makes provision for civil legal aid for parties to family or civil proceedings, in relation to a hearing to vary or discharge a domestic abuse protection order, where the matter is raised by the court of its own motion.

Article 4(4) makes provision for legal aid in respect of the legal representation of a victim or relevant third party in relation to an application to the Crown Court or to the magistrates’ court to vary or discharge a domestic abuse protection order.

Part 3, comprising articles 5 to 9, amends secondary legislation relating to eligibility for legal aid. Article 5 amends the Civil Legal Aid (Procedure) Regulations 2012, to substitute references to “domestic violence” and “financial” abuse for references to “domestic abuse” and “economic” abuse respectively. Further, the definition of “appropriate health professional” in paragraph 22 of Schedule 1 to those Regulations is amended to include the persons mentioned in new sub-paragraph (d) with the effect that such persons may provide evidence of domestic abuse as specified for the purpose of a legal aid application.

Articles 6 to 8 amend other secondary legislation to substitute references to “domestic violence” for references to “domestic abuse” to align terminology with the DA Act.

Article 10 amends the Criminal Legal Aid (General) Regulations 2013 (S.I. 2013/9; the relevant amending instrument is S.I. 2023/150). It prescribes certain proceedings under Part 3 of the DA Act as “criminal proceedings” for the purposes of Part 1 of the Act.

Where the circumstances specified in article 11 occur, the article has the effect of disapplying article 10(2). This disapplication would result in civil, not criminal, legal aid being available to a person arrested and brought before the magistrates’ court following arrest, for a breach of a domestic abuse protection notice, under section 26(2)(b) of the DA Act.

An impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is included in the assessment published with the explanatory memorandum alongside this instrument (on www.legislation.gov.uk). The impact assessment does not cover the amendments in relation to domestic abuse protection notices and domestic abuse protection orders as their impact on the cost to business and the voluntary sector and community bodies was included in the assessment published with an explanatory memorandum alongside the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 (S.I. 2023/150) on https://www.legislation.gov.uk/uksi/2023/150/impacts.